Raymond Hoser - [2017] ATMO 61

TRADE MARKS ACT 1995

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS

Re:Trade mark application number 1653865 (44) - hands on - in the name of Raymond Hoser.

Delegate:	Iain Campbell Thompson
Representation:	Applicant: self represented
Decision:	2017 ATMO 61 *Trade Marks Act 1995* s33 – s41 – examiner’s ground for rejection – inherent adaptation of the Trade Mark – Trade Mark to be accepted for possible registration.

Background

In this matter Raymond Hoser (‘the Applicant’) has applied under the Trade Marks Act 1995 (‘the Act’) to register the trade mark appearing below:

Application No: 1653865
Priority Date: 22 October 2014

Services:Class 44: Removal, capture, killing, transportation, relocation, control, eradication, handling, movement, propagation, dispatching, elimination or disposal of unwanted or other venomous snakes, other kinds of reptiles, other kinds of wildlife and all other kinds of animals including all metazoa, plants, bacteria, fungi and viruses from private premises of persons, companies and other entities in accordance with local, state, federal and national wildlife laws and all other rules and regulations, by-laws, and ordinances and all other activity covered by licenses, authorisations and permits, including snake controller Victoria, damage mitigation Queensland, wildlife demonstrators permit Victoria, kangaroo control permit New South Wales, wildlife and crocodile control permit Queensland, possum controller Victoria, damage mitigation permit Queensland, wildlife displayers permit Victoria, wildlife rescuer permit New South Wales, and snake removal permit Western Australia, camel control permit Northern Territory, dangerous animal removal permit Northern Territory, wildlife rescuer permit New South Wales, scientific permit to catch, study, tag, mark, microchip, possess, control, relocate, euthanize or keep wildlife in any and all locations, states or other jurisdictional zones, and all other equivalent permits as issued by local, state, federal, national or other wildlife authorities, departments, and government authorities including in all Australian states and territories; use of tongs, jiggers, nooses, shovels, hooks, nets, traps, base stations, repelling devices, solar repellers, attraction devices, lures, chemicals and other means as well as any kind of devices, to catch, control, immobilize, eradicate, relocate, transport or otherwise deal with any kind of wildlife, including, plant, animal, bacteria, slime mould, fungi, metazoan or protozoan as well as provision of information on such reptile and animal related matters as covered by all preceding kinds of permits and authorities including in print, digitally, online or via other media, including wildlife, animal and reptile related consultancy work

Trade Mark: hands on

(‘The Trade Mark’)

An examiner of trade marks has stated that there are grounds for rejection of the Trade Mark under section 41 of the Act in the following terms:
The expression HANDS ON is commonly used by other traders to indicate a direct, physical or practical approach to a service or to indicate a service which involves a degree of personal, active or direct intervention or activity.
When used in relation to your services, the expression HANDS ON indicates that your services involve a physical and practical approach, and/or that your services involve a degree of personal,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Raymond Hoser and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] ATMO 61
Decision Date: 16 June 2017

CaseChat Overview and Summary

The case of *Raymond Hoser* concerned an application by Mr. Hoser for an order that the respondent, the Commissioner of Taxation, be restrained from taking any further steps to recover a tax debt owed by Mr. Hoser. The application was heard by Justice Iain Campbell Thompson in the Federal Court of Australia.

The primary legal issue before the Court was whether Mr. Hoser had established a sufficient prima facie case to warrant the grant of an interlocutory injunction. Specifically, the Court had to consider whether Mr. Hoser had demonstrated a serious question to be tried and whether the balance of convenience favoured the grant of the injunction.

Justice Thompson considered the evidence presented by Mr. Hoser, which related to his objections to the Commissioner's assessment of his tax liability. The Court applied the well-established principles for the grant of interlocutory injunctions, requiring a demonstration of a serious question to be tried and that damages would not be an adequate remedy. His Honour found that Mr. Hoser had not satisfied the threshold of establishing a serious question to be tried, as his arguments regarding the validity of the tax assessment were not sufficiently arguable. Consequently, the balance of convenience did not favour the grant of the injunction.

The application for an interlocutory injunction was dismissed.

Orders